Allan M. Labowitz
DynMeridian

On May 15, 1997, the IAEA Board of Governors approved the text of a model protocol to be added to each comprehensive safeguards agreement, upon its acceptance by the government concerned. There are more than 120 almost identical comprehensive safeguards agreements in effect with non-nuclear weapon states party to the NPT or other treaties. Implementation of the model protocol is intended to permit the IAEA, while applying safeguards to detect diversion of declared nuclear material, to also provide credible assurance of the absence of undeclared nuclear activities or material in the state party to such an agreement. Among the various means by which that goal is to be achieved, the protocol calls for the state to provide to the IAEA information concerning a wide variety of nuclear fuel cycle-related activities, and to allow access by IAEA's inspectors to, inter alia, the locations of such activities, including facilities declared to have been decommissioned. The stated purpose of access to such a facility would be to confirm, for safeguards purposes, the government's declaration of its decommissioned status.

In order to encourage non-nuclear weapon states to accept the model protocol, the U.S. stated, during both the negotiation of the text and its consideration by the Board of Governors, that the U.S. intended to accept the new measures in the protocol in their entirety, except where they involve information or locations of direct national security significance to the U.S. A new protocol, based upon the model, is to be made an integral part of the existing U.S. -IAEA Safeguards Agreement. Under that Agreement, the U.S. has identified more than 200 NRC-licensed reactors and other facilities, as well as about 30 DOE facilities, as eligible for selection by the IAEA for application of safeguards.

The manner in which the IAEA would likely treat a selected decommissioned NRC-licensed power reactor under the existing U.S. - IAEA Safeguards Agreement, with a new protocol based upon the model, will be quite different from the treatment of the same reactor selected under the existing Agreement, without a new protocol.

The Nuclear Non-Proliferation Treaty (NPT), entered into force in March 1970 and was extended indefinitely in May 1995. Article III requires each non-nuclear weapon state (i.e., those states other than China, France, Russia, the United Kingdom and the United States) party to the NPT to enter into an agreement with the International Atomic Energy Agency (IAEA) for the application of IAEA safeguards to all nuclear material in all of its peaceful nuclear activities; a safeguards agreement of that scope is referred to as "comprehensive". As of the end of 1997, there were 185 non-nuclear weapon states parties to the NPT, among which more than 115 had each brought into force a comprehensive safeguards agreement with the IAEA. Additional comprehensive agreements, with non-nuclear weapon states parties to the Treaty of Tlatelolco, were also in force as of the end of 1997, bringing the total number of states with comprehensive agreements to more than 120.

During negotiation of the NPT, concerns had been expressed by some industrialized non-nuclear weapon states that the application of IAEA safeguards only in their industries would place them at a competitive disadvantage with industries in nuclear-weapon states parties. To allay those concerns, President Johnson announced, on December 2, 1967, that the U.S. was not asking any country to accept safeguards that the U.S. was unwilling to accept and that, when safeguards were being applied in non-nuclear weapon states parties to the NPT, the U.S. would permit the IAEA to apply its safeguards to all nuclear activities in the U.S., excluding only those with direct national security significance.

In February 1978, President Carter submitted the text of a U.S. -IAEA Safeguards Agreement, designed to implement the U.S. "voluntary offer", to the U.S. Senate for its advice and consent to ratification as a treaty. Following favorable action by the Senate, the Agreement was brought into force in December 1980. At present, the U.S. has identified to the IAEA 239 facilities from which the IAEA may select any (or all) for application of its safeguards to nuclear material in accordance with the Agreement. The Agreement requires the IAEA to follow the same procedures in each selected U.S. facility as are used in applying its safeguards on similar material in similar facilities in non-nuclear weapon states parties to the NPT.

The facilities currently identified by the U.S. (i.e., all those without direct national security significance) include 109 commercial nuclear power reactors operating under licenses issued by the Nuclear Regulatory Commission (NRC), 10 NRC-licensed power reactors which are noted as "shutdown", and 7 power reactors under construction with an application pending for an operating license from the NRC. The list also includes 47 research reactors and critical assemblies with operating licenses issued by the NRC, 5 conversion plants and 7 fuel fabrication or processing plants licensed by the NRC to operate, as well as two dozen other miscellaneous NRC-licensed activities. The list also includes 29 license - exempt facilities of the Department of Energy, including vaults at Hanford, Washington and Rocky Flats, Colorado containing plutonium declared by the U.S. to be excess to it deterrent needs, selected by IAEA for application of safeguards, and a vault in the Y-12 plant at Oak Ridge, Tennessee containing highly-enriched uranium declared excess, also selected by IAEA for application of safeguards.

Beginning in 1972 and until the Gulf War, the IAEA had applied safeguards in Iraq, under a comprehensive safeguards agreement pursuant to the NPT, to all nuclear material declared by Iraq to be in use for peaceful purposes. During that time, the IAEA did not report any diversion or misuse of any nuclear material by Iraq. Following the Gulf War, however, it was discovered that Iraq, in violation of its obligations under that agreement and under the NPT, had undertaken an extensive and elaborate clandestine effort to develop uranium enrichment and nuclear weapons manufacturing capabilities.

That discovery prompted the IAEA Secretariat and Board of Governors to examine the Agency's safeguards system to determine what additional measures would be needed in order to enable the IAEA, when applying safeguards under a comprehensive safeguards agreement to verify that declared nuclear material had not been diverted, to also provide credible assurance of the absence of undeclared nuclear materials or activities. Formal approval of such an investigation by the Secretariat was given by the Board in 1993, with the expectation that the results would be available in time for the NPT review and extension conference in 1995. The Secretariat's investigation, which became known as "Programme 93 +2 ", was strongly supported by the U.S.

The principal result of the Secretariat's investigation was a draft of a protocol designed to be accepted by each non-nuclear weapon state having a comprehensive safeguards agreement with the IAEA. The draft protocol called for each such state to provide information regularly to the IAEA concerning its nuclear and nuclear-related activities, beyond that called for in its standard agreement. Each state would also provide access by IAEA inspectors to additional activities for specified purposes, as well as for wide-area environmental sampling, when its use and procedures had been approved by the Board. The Board referred the Secretariat's draft to a committee, open to all member states of the IAEA, to develop a consensus text.

As had happened during the negotiation of the NPT, some non-nuclear weapon states having comprehensive safeguards agreements with the IAEA were not eager to accept more demanding and intrusive obligations than would be required of nuclear-weapon states. In response to their desires for "universality", President Clinton, in September 1996, confirmed that the U.S. stood ready to apply the new safeguards measures as fully as possible in the U.S., consistent with its obligations under the NPT. In May 1997, when the Board approved the text of a model protocol recommended by the committee, President Clinton informed the Board that the U.S. would accept the protocol in its entirety in a legally binding manner and apply all of its provisions, except where they involve information or locations of direct national security significance to the U.S.

More recently, it has been made clear that the U.S. will treat the protocol as an integral part of the existing U.S. - IAEA Safeguards Agreement, and that it will not seek to alter the reporting and access provisions of the protocol. It was also stated that no additional amendments will be sought to the existing Agreement and that legislation that may be needed to implement U.S. obligations under the protocol will be introduced into the Congress.

The obligations incurred by a state under the protocol, with respect to nuclear installations which have been shutdown, can be deciphered by reference to relevant articles. The best place to start may be the definitions found in Article 18.

Nuclear material is defined in paragraph h. to mean any source or any special fissionable material as defined in the Statute of the IAEA, with the term "source material" not to apply to ore or ore residue. (The IAEA Statute defines "special fissionable material" to mean "plutonium-239 uranium-233; uranium enriched in the isotopes 235 or 233; any material containing one or more of the foregoing, and such other fissionable material as the Board of Governors shall from time to time determine...") Note that the phrase "one effective kilogram", while not defined in the protocol, is defined in every comprehensive safeguards agreement (and the U.S.-IAEA Agreement ) as comprising a kilogram of plutonium or pure U-233 or U-235, or larger amounts of uranium with lower concentrations of those isotopes.

The general description of each building on the site of a facility or closed-down facility, including the use and contents of the building and a map of the defined area, must be included in the declaration to the provided to the IAEA, in accordance with Article 2 a. (iii), and the definition of site in Article 18b. That definition also includes the areas around closed-down LOFs, but only those where not only nuclear material was customarily used, but also where hot cells are located "or where activities related to conversion, enrichment, fuel fabrication or reprocessing were carried out."

Decommissioned facilities or decommissioned LOFs, are not mentioned in the definition of site and thus seem not required to be included in the declaration by the state to the IAEA called for by Article 2. They are addressed specifically in Article 5a. (iii), which requires the IAEA to be provided access to any decommissioned facility or decommissioned LOF where nuclear material was customarily used. Article 4a. (iii) calls for the IAEA to implement such access "to the extent necessary to confirm, for safeguards purposes, [the state's] declaration of the decommissioned status of a facility or location outside facilities where nuclear material was customarily used."

Article 6 stipulates that, in order to confirm such declared decommissioned status, the IAEA may carry out visual observation, collect environmental samples, utilize radiation detection and measurement devices, apply seals and other identifying and tamper indicating devices specified in Subsidiary Arrangements, " and other objective measures which have been demonstrated to be technically feasible and the use of which has been agreed by the Board of Governors ... and following consultations between the Agency and [the state]."

Article 7a. provides for arrangements to be made, upon request by the state, for "managed access" in order to prevent the dissemination of proliferation sensitive information, to meet safety or physical protection requirements, or to protect proprietary or commercially sensitive information. According to Article 7c., the state may have recourse to such managed access pending the entry into force of any necessary Subsidiary Arrangements.

Article 13 provides for Subsidiary Arrangements to be agreed by the state and the Agency, if either indicates the need to specify how measures laid down in the protocol are to be applied.

Article 15 calls for the Board to approve and periodically review "a stringent regime to ensure effective protection against disclosure of commercial, technological and industrial secrets and other confidential information coming to the Agency's knowledge in the implementation of this Protocol."

Several U.S. agencies and the NRC are now engaged in preparations for negotiations with the IAEA Secretariat of a protocol to the U.S.-IAEA Safeguards Agreement, based upon the model. Among the issues being addressed in the preparations are the assignment of responsibilities among the agencies concerned, identification of necessary implementing legislation, how the national security exclusion is to be formulated and applied, and the form in which the new protocol is to be presented to the Congress.

While it is thus not possible to predict with certainty the overall effect of eventual implementation of a new protocol, together with the existing Agreement, the case of decommissioning of a facility listed by the U.S. as eligible for selection by the IAEA for application of safeguards under the Agreement, appears to be fairly straightforward. The IAEA could, for example, select one of the 10 "shutdown" NRC-licensed power reactors already listed and call for the U.S. to submit design information and nuclear material inventory data pertaining to the reactor. If the information submitted indicated that the reactor had, in fact, been decommissioned, as defined in the protocol, the IAEA would consult with the U.S. Department of State (who would be expected to include the NRC and the licensee), in accordance with Article 6 of the model protocol, concerning the specific means by which the IAEA would confirm, on a continuing basis, the decommissioned status of the reactor. Presumably, the consultations would also address the need for and content of Subsidiary Arrangements, as provided for in Article 13, and the licensee's wishes concerning arrangements for managed access, in accordance with Article 7c. The licensee's interest in initiating such managed access prior to entry into force of any Subsidiary Arrangements, as provided for in Article 7a., could also be indicated.

This approach would differ from that which would result from the selection of the same reactor under the existing Agreement, without a new protocol. In that case, when the IAEA receives the design and inventory information indicating that the reactor has been decommissioned, inspectors would be sent to conduct an ad hoc inspection to confirm the status of the reactor. That inspection would be carried out using procedures determined by the IAEA alone, subject only to general provisions such as that requiring the IAEA to avoid "undue interference...in the operation of facilities." Upon confirmation of the absence of any nuclear material, the IAEA would likely take no further action, although it could select the reactor again at a later time and repeat the exercise.

Thus, the principal effect of the new protocol, in the case of the decommissioning of a reactor on the list of eligible facilities, would be (1) explicit provision for further inspections, using mutually agreed procedures, to enable IAEA to obtain continuing confirmation of the reactor's status, and (2) the opportunity for the licensee to have recourse to managed access to avoid disclosure of proprietary information during those inspections.